The EAT on past procedural failings

Martin Cheyne and Sam Stone examine the Employment Appeal Tribunal's views around ongoing procedural errors.

In the recent case of Addenbrooke v Princess Alexandra Hospital NHS Trust, the Employment Appeal Tribunal has provided useful reassurance to employers about past procedural failings – even where these errors could have potentially exposed the employer to earlier claims for unfair dismissal.

The EAT held that a failure to follow a grievance procedure can potentially damage the trust an employee has in their employer, even to the extent that the employee could resign and bring a claim on the basis that they had been constructively dismissed. However, if employees don’t resign, and continue doing their job without bringing a claim, then they may have accepted that the employer hasn’t followed the grievance process, and that this hasn’t irreparably damaged their trust in their employer; this may prevent them bringing a claim for unfair dismissal.

In Addenbrooke v Princess Alexandra Hospital, the Trust breached its policy by not telling an employee of the outcome of a grievance she had raised. However, the employee had continued to work at the hospital for some time, despite knowing that she had not received a formal conclusion of her grievance, before resigning and bringing an unfair dismissal claim.

The EAT held that she had accepted that the policy was not going to be followed at all, and had decided to continue working for the Trust regardless. She was not able to rely on the employer’s ongoing failure to follow procedures to get round evidence that she had, in fact, accepted the situation and decided to stay in their role.

Employers should make sure that they keep clear records of action taken to comply with internal complaints or grievance processes, as failure to follow the process may still lead to resignations and legal action; however, this judgment suggests that employers may be able to ‘draw a line’ under past errors in procedure without needing to look back and retrospectively make sure they have complied in every instance.

Martin Cheyne is a partner and Sam Stone a trainee solicitor at health and social care law firm Hempsons.